RL Giving Judges a Voice in Democracies

GIVING JUDGES A VOICE IN DEMOCRACIES

From a lecture by Master Cheryl Thomas (UCL Faculty of Laws, Dean of Education at The Inner Temple) delivered via webinar on 16 November 2020.

In this talk on giving judges a voice in democracies, I am going to cover three things. I am going to explore the mechanisms British judges can use to express their views in public, and how these have changed over the years. I will share with you some key findings from my research, which explores judges’ attitudes and experiences, and tries to give them a voice. And I will consider some of the challenges in a democracy of giving judges a voice outside their court judgments.

Today, in the UK, it is hard to think of a single important social issue that judges are not at some point asked to pass judgment on. In just the last few years, the courts have been asked to determine whether medical treatment should be withheld from terminally ill infants against their parents’ wishes, whether private landlords must check the immigration status of their tenants, who can legally be classified as a mother, whether terminally ill people should be allowed to determine when and how their lives end, and whether the government can do something like trigger article 50 to leave the EU without getting parliament’s consent, or can lawfully prorogue parliament for five weeks.

This means that judges are subject to a greater level of public scrutiny, political debate and media attention than ever before. But judges historically have not had a voice outside of their court judgments. That changed in 2014 when the first UK Judicial Attitude Survey was run, exploring the attitudes and experiences of judges in England and Wales, Scotland and Northern Ireland. It is a longitudinal study, which means it is run on a recurring basis. This allows us to understand how judges’ views may be changing over time.

I am going to consider the importance of providing this type of voice to judges in a democracy, as well as the challenges that can result when judges are given such a voice. I also want to look how historically we have approached the idea of judges having a public voice. While judges have a voice through their legal judgments, judgments very rarely tell us much about how judges view their relationship with the other branches of government, the public and the media, or what their views are about being a judge and their role in society.

Should judges have any other voice in democratic society? Traditionally, in this jurisdiction, the judiciary has relied on others to speak for and speak up for judges. Most prominently, this reliance has been placed on the Lord Chancellor, who has an obligation in law (under the Constitutional Reform Act 2005) to defend the independence of the judiciary. But events in recent years have raised questions about whether the judiciary can always rely on the Lord Chancellor to fulfil this obligation. In this context, it is useful to remember how the judicial voice has evolved in England and Wales. During the last century, judges were bound by the so-called Kilmuir Rules about when judges should and should not speak outside the courtroom. These were not formally developed judicial rules of conduct. They were the personal views of the then Lord Chancellor, Lord Kilmuir, who in 1955, said, “The overriding consideration is the importance of keeping the Judiciary in this country insulated from the controversies of the day. So long as the judge keeps silent, his reputation for wisdom and impartiality remains unassailable.”

The Kilmuir Rules were publicly abandoned in 1987 by Lord Mackay when he became Lord Chancellor. More recently, in a speech in 2012, when he was Master of the Rolls, Lord Neuberger endorsed a judicial voice when he said that “judges, with their wisdom and experience, should be able to comment extrajudicially on a wide range of issues.”

During the last century, judges were bound by the so-called Kilmuir Rules about when judges should and should not speak outside the courtroom. These were not formally developed judicial rules of conduct. They were the personal views of the then Lord Chancellor, Lord Kilmuir.

Judges can and do speak publicly now. One only has to look at the websites of the judiciary of England and Wales and the UK Supreme Court to see the large number of speeches by senior judges in recent years on a range of legal issues. This is permissible because, in principle, there is now no objection to members of the judiciary speaking about legal matters that are not controversial, via lectures, conferences or seminars organised by professional bodies or by academic institutions.

Senior judges now also routinely give evidence to parliamentary committees. Judicial participation in select committees is usually confined to commenting on the operation of the courts, the independence of the judiciary or aspects of the administration of justice. This type of judicial voice is permissible because it is thought to contribute to public understanding and confidence in the judiciary.

The scope of what judges can say publicly is bound by judicial conduct rules. By long-standing convention, judges cannot comment publicly on the merits of individual cases. They must also refrain from answering public criticism of any judgment. Judges are also not supposed to comment on government policies, proposed legislation or public appointments. There is also a statutory prohibition on judges being involved in any political activity or having ties with any political party.

And when it comes to social networking, blogging and the use of platforms such as Twitter, while this is not strictly prohibited, if judges do communicate online in this way, they must not identify themselves as members of the judiciary. They must also avoid expressing opinions which could damage public confidence in their own impartiality or the impartiality of the judiciary in general. Given these restrictions on judges having a voice in society, how then can we understand what it is really like to be a judge, what their attitudes are to being a judge, lives and the relationship they have with the public, the government and the media?

Since 2014, judges in all the UK jurisdictions have been given some voice through the UK Judicial Attitude Survey. The survey explores judges’ views on a wide range of issues. This includes their working lives, their motivation to be a judge, their view of the role of the judge in society, the concerns they have in their working lives as judges. It also reveals how this might affect their willingness to continue in their judicial roles, or their willingness to encourage others to become judges. We have lived through some turbulent times for the judiciary since 2014 and I believe there is a need for independent objective research, giving judges a voice. The UK Judicial Attitude Survey is quite a clear and comprehensive voice; almost all judges (99%) have taken part in this study.

I would like to share some of the findings of the survey with you now to illustrate the value of hearing this judicial voice. Let me start with a press headline about judicial salaries from the Daily Mail: “Spare a thought for our poor judges! They moan they are underpaid and underappreciated (despite enjoying six figure salaries)”. This headline followed publication of the first UK Judicial Attitude Survey, in which judges were asked about their working conditions and their remuneration. Because judges are restricted in what they can say publicly, it can be difficult for the public to interpret media stories like this. The Judicial Attitude Survey has enabled judges to speak at least indirectly by providing an important truth and context to this easy clickbait headline. The most recent Judicial Attitude Survey in 2020 showed the reality that a majority of judges in England and Wales take a pay cut, in some cases a very substantial one, to be a salaried judge. It is also important to understand this in the context of the fact that becoming a salaried judge also means accepting the ‘no return to practice’ rule in England and Wales. That means that once you become a salaried judge, you cannot return to your legal practice when you leave the bench, even if you decide to leave early. Since 2014, judges in all the UK jurisdictions have been given some voice through the UK Judicial Attitude Survey. The survey explores judges’ views on a wide range of issues. This includes their working lives, their motivation to be a judge, their view of the role of the judge in society, the concerns they have in their working lives as judges.

Why do judges become judges? I am going to share some more of the findings of the Judicial Attitude Survey for judges in England and Wales that give some insight into how judges see themselves, their role in society and the relationship with other political institutions. First, what motivates someone to become a judge? The main factors that motivate members of the legal profession to become judges in England and Wales are the chance to contribute to justice being done (79%), the challenge of the work (75%), the commitment to public service (70%) and the intellectual satisfaction (70%). Next, what do judges think of their role in society? Almost every single judge felt that she or he is providing an important public service to society (97%). And this view is pervasive amongst judges in all judicial posts in both the courts and tribunals.

But how do judges think the public views them? Over two-thirds of judges feel that members of the judiciary are respected less now than they were five years ago; just under a third feel that the levels of public respect for judges have stayed the same; and only a very small minority feel that judges are respected more than they were five years ago. Judges feel most valued by other judges at their court (94%), by court staff that they work with (93%), the legal professionals that they work with (89%) and the parties who appear before them in cases (87%). It is interesting to note that over two-thirds of judges do feel valued by the public but few judges feel valued by the media (12%) and almost none feel valued by the government (9%). Given this, we also explored how concerned judges are by recent conflicts with the government and attacks by the media on judges. Both feature amongst those issues of greatest concern to judges; 73% were concerned about the loss of respect for the judiciary by the government and 53% were concerned about media attacks on the judiciary. But these sit alongside similarly strong concerns judges have over staff and budget reductions, an increase in litigants in person and the loss of experienced judges in the judiciary.

Are there any real risks in giving judges a voice in democracies? First, I think there is an inevitable risk of misunderstanding when judges’ views are revealed. We saw that with some of the press coverage of the first Judicial Attitude Survey, which focused very heavily on judges’ views about their salary. But I think we also need to recognise that there is likely to be some public confusion about which judges can speak publicly and which cannot. The judicial conduct rules I outlined earlier apply primarily to salaried judges. Fee-paid, part-time judges are not under any general legal prohibition on political activity. There is also no prohibition on political activity in public debate by retired judges, although they should take care to avoid any activity which could tarnish the reputation of the judiciary, or the perception of its independence. The reality is that the retirement age age (70 for most judges) leaves many retired senior judges with new roles. Some of our most senior judges in retirement now play an important legislative role in the House of Lords, and some retired UK Supreme Court justices have also turned to political commentating. They will all inevitably be referred to as “judge” in media reports, and the public will not necessarily understand which judges are and are not able to express personal views in public.

Finally, let me turn to the issue of US-style confirmation hearings for judges. This raises the question: should judges be forced to have a voice and speak publicly before they are actually appointed? Following the UK Supreme Court’s decision in The Miller–Cherry Case, the Prime Minister, Boris Johnson, said that “if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability”, and he said “the lessons of America are relevant.” The then Attorney General Geoffrey Cox told the House of Lords that there may very well need to be parliamentary scrutiny of judicial appointments, even though he said he was not enthusiastic about this. If there is any serious intention in this country to learn lessons about judicial appointments from the United States, what needs to be clearly understood is the difference between US Supreme Court appointments and judicial appointments anywhere else. US Supreme Court appointments are what is called ‘Article III’ appointments. The US practice of life tenure and no minimum age or experience requirement for Article III judges is highly unusual and not replicated anywhere else in the common law world. US Supreme Court judges serve on average for 17 years, and this long tenure is what provides the primary justification for the role of elected officials in the process of nomination. For UK Supreme Court justices, there is a 15-year minimum legal experience qualification, and a legally binding retirement age that now forces all UK Supreme Court justices to retire at 80. This means that UK Supreme Court justices actually serve for very short periods of time (half of all now retired UKSC judges served for only three years or less). Suggestions that parliament should be involved in UK Supreme Court judicial appointments are not justified on the same grounds as they are in the US.

Over two-thirds of judges feel that members of the judiciary are respected less now than they were five years ago; just under a third feel that the levels of public respect for judges have stayed the same; and only a very small minority feel that judges are respected more than they were five years ago. Judges feel most valued by their immediate colleagues, by court staff that they work with, the legal professional that they work with and the parties who appear before them in cases.

So why does it matter that we give judges a voice in our democracy? In practical terms, it matters for the future of the judiciary. But it is also important for society as a whole that some demystification of the judiciary occurs by hearing from judges themselves. Today, in the UK, judges are increasingly subject to a greater level of public scrutiny and political discussion than ever before. This has come in large part as a result of the growing deferral to judges to address deeply controversial political and social issues, often ones that parliament and government are unable or unwilling to address. This brings judges increasingly into the public, political and media eye. But independent judges will always necessarily have a limited public voice beyond their judgments. Judicial independence requires that a judge be and be seen to be independent of the sources of power or influence in society. This means that giving judges a voice through independent analysis of their attitudes and experiences, as we do in the UK Judicial Attitude Survey, is more necessary now than ever.

Professor Cheryl Thomas QC

UCL Faculty of Laws Dean of Education at The Inner Temple

For the video recording of this talk: inntemple.org.uk/lectures